2023 Update on Key Federal Immigration Policies and Implications for Health
In recent months, there has been increased focus on immigration trends and the evolving landscape of immigration policies, amid increasing immigration activity at the U.S.-Mexico border. In 2021, there were 20.8 million noncitizens and 23.9 million naturalized citizens residing in the U.S., who accounted for about 6% and 7% of the total population, respectively. Noncitizens include lawfully present and undocumented immigrants. Many individuals live in mixed immigration status families that may include lawfully present immigrants, undocumented immigrants, and/or citizens, including the one in four children who have an immigrant parent. Over the last two years, there has been a surge in immigration activity at the border, with over 2 million encounters at the U.S.-Mexico border in 2022. Against this backdrop, there have been ongoing changes to several key immigration policies. reflecting actions by the Biden Administration and court rulings.
This issue brief provides the latest update on some key evolving immigration policies, including Title 42 as it applies to border enforcement, the Deferred Action for Childhood Arrivals (DACA) program, and the public charge rule and discusses the implications of these policies for the health and well-being of immigrants.
Title 42 restrictions will lift when the COVID-19 public health emergency (PHE) declaration ends on May 11, 2023.
Title 42 of the Public Health Services Act is a public health authority that authorizes the Director of the Centers for Disease Control and Prevention (CDC) to suspend entry of individuals into the U.S. to protect public health. This authority was implemented by the Trump Administration in March 2020 in response to the COVID-19 pandemic to allow for quick expulsion of migrants, including asylum seekers, seeking entry into the U.S. at the land borders. After taking office, the Biden Administration continued to enforce Title 42, with new exceptions provided to unaccompanied minors, but announced plans to end the suspension of entry in 2022. Due to court challenges, the policy remained in place pending the Supreme Court hearing arguments on whether a coalition of states, including Texas, could challenge a lower court ruling that ordered the policy be lifted. However, on February 16, 2023, the Supreme Court canceled the hearing for these arguments, following filing of a brief from the Biden Administration arguing that the case would become moot since the Biden Administration announced an end to the COVID-19 public health emergency (PHE) on May 11, 2023, which will consequently end the Title 42 border restrictions as well.
In 2022, over 1 million, or almost half (45%), of all migrant encounters at the border were under Title 42 authority. A vast majority (89%) of the Title 42 expulsions were of single adults. Research shows Title 42 expulsions have negatively impacted the health and well-being of migrant families. Physicians suggest that being in close proximity with other individuals while being temporarily detained or transported back to Mexico, lack of medical screenings, and lack of provision of necessary medication can all have adverse impacts on physical and mental health.
It is expected that immigration activity at the border will increase if Title 42 is lifted, and the Biden Administration has outlined new actions it will take to enhance border enforcement. If Title 42 is lifted, it will be increasingly important to address health and health care needs in border areas, given the disparities and challenges in these areas, particularly in the Texas border region (Figure 1). The Biden Administration has announced plans to increase security and enforcement at the border to reduce unlawful crossings, expand “legal pathways for orderly migration”, invest additional resources in the border region, and partner with Mexico to implement the aforementioned plans.
Deferred Action for Childhood Arrivals (DACA) Program
Under current court orders, the government is not processing first-time DACA applications, but existing DACA approvals remain in place and can be renewed.
The DACA program was originally established under a Presidential Executive Order in June 2012 to protect certain undocumented immigrants who were brought to the U.S. as children from removal proceedings and receive authorization to work for renewable two-year periods. To be eligible, individuals must have arrived in the U.S. prior to turning 16 and before June 15, 2007; be under the age of 31 as of June 15, 2012; be currently enrolled in school, have completed high school or its equivalent or be a veteran; and have no lawful status as of June 15, 2012. The program has enabled over 900,000 immigrants to stay in the U.S., go to school, and contribute to the economy through gainful employment.
As of September 30, 2022, there were over 589,000 DACA recipients in the U.S. A majority (58%) of active DACA recipients live in California, Texas, Illinois, New York, and Florida, 54% are female, and 65% are between the ages of 21 and 30 years.
While DACA protects an individual from removal action for a certain period of time, it does not provide lawful status or a pathway to U.S. citizenship, and people with DACA status remain ineligible for federally-funded health coverage. Individuals with DACA status can be authorized to work, and studies have found that DACA eligibility helps improve physical and mental health, particularly among individuals with low incomes, and can improve the wellbeing of children of DACA recipients. However, individuals with DACA have limited options for health insurance coverage if they do not have access to employer-sponsored insurance since they remain ineligible for many federal programs, including health coverage through Medicaid, the Children’s Health Insurance Program, and the Affordable Care Act (ACA) health insurance Marketplaces.
The Biden Administration published a final rule in 2022 that would codify DACA largely consistent with its existing eligibility requirements and scope, but it’s implementation is limited subject to court orders. Promulgation of this rule followed a rescission of the program by the Trump Administration in 2017 that was ruled unlawful by the Supreme Court in 2020. While the Biden Administration’s final rule became effective on October 31, 2022, its implementation is limited subject to ongoing litigation. A federal appeals court ruling in early October 2022 found the original 2012 DACA policy to be unlawful and remanded the case back to the district court for further proceedings per the new regulations. Subject to current court orders, as of October 31, 2022, current DACA approvals and work authorizations remain in effect, and the Department of Homeland Security will continue to process DACA renewal requests and related requests for employment authorization. It is also accepting initial DACA and employment authorization requests, however, it cannot process initial requests under the current court orders, so these requests remain on hold.
Even if processing of first-time DACA applications were reinstated, the number of young adults who may benefit from DACA is dwindling. Given the requirements to have entered the U.S. prior to June 15, 2007, and to be under the age of 31 as of June 15,2012, the number of people who could be eligible for DACA is decreasing over time. The American Dream and Promise (DREAM) Act of 2021 would provide a pathway to lawful permanent resident status and eventually citizenship for undocumented immigrants who were brought to the U.S. as children and who meet certain requirements. Different versions of this Act have been proposed in the U.S. Congress since 2001, but have never been passed, and there does not appear to be a current pathway to passage for such legislation.
If the district court reviewing the current case finds the DACA program to be unlawful and no additional legislative or administrative action is taken, individuals will lose their deferred status. Loss of DACA status would result in individuals losing work authorization and potentially being subject to deportation. Employers would likely terminate individuals as they lose work authorization, leading to job losses along with loss of employer-based health coverage. Without access to coverage through an employer, many individuals would likely become uninsured since they are not eligible to enroll in Medicaid or CHIP or to purchase coverage through the Marketplaces. Employment and coverage losses would lead to increased financial pressure and reduced access to care for individuals and their families, who may include citizen children.
Public Charge Rule
As of December 23,2022, the Biden Administration’s new public charge regulations went into effect, but continued outreach and education efforts will be key for reducing fears about enrolling in health coverage and other assistance programs among immigrant families.
Under longstanding immigration policy, federal officials can deny entry to the U.S. or adjustment to LPR status (i.e., a “green card”) to someone they determine to be a public charge. In 2021, the Biden Administration stopped applying public charge regulations implemented by the Trump Administration in 2019 that had newly considered the use of noncash assistance programs, including Medicaid, in public charge determinations. Instead, it returned to the use of 1999 field guidance, which does not consider the use of noncash benefits including Medicaid coverage, except for long-term institutionalization, in making public charge determinations., In 2022, it issued new regulations that largely codified this field guidance. A primary stated aim of the 2022 public charge rule is to address chilling effects of the 2019 rule that led many immigrant families, including citizen children in these families, to not seek assistance including health coverage and care, for which they were eligible.
The final public charge rule was published on September 9, 2022 and went into effect on December 23, 2022, but families may continue to avoid participating in assistance programs due to fears of potential negative consequences on their or a family member’s immigration status. A 2021 KFF survey of Hispanic adults found that 1 in 4 potentially undocumented Hispanic adults and over 1 in 10 lawful permanent resident Hispanic adults reported that they or a family member did not participate in a government assistance program in the past three years due to immigration-related fears (Figure 3). Even with the new rule now in effect, overcoming these fears will likely require sustained outreach efforts from trusted community-based messengers. Addressing these fears will be key for helping to narrow the large gaps in health coverage for immigrants and citizen children in immigrant families.
Immigrants are a diverse and growing population that makes important contributions to U.S. culture and economy. As immigration policies continue to evolve due to legislative, administrative, and judicial action, it is important to understand how these changes impact immigrants’ access to health care and the overall health and well-being of immigrant families.